Kidushin, 26

KIDUSHIN 24-30 (9-15 Sivan) - This week's study material has been dedicated
by Mrs. Rita Grunberger of Queens, N.Y., in loving memory of her husband,
Reb Yitzchok Yakov ben Eliyahu Grunberger. Irving Grunberger helped many
people quietly in an unassuming manner and is dearly missed by all who knew
him. His Yahrzeit is 10 Sivan.

1) THE KINYAN OF "HAGBAHAH"

QUESTIONS: The Gemara explains that the Kinyan of Hagbahah can be
accomplished not only by physically lifting an object, but even by causing
it to rise. Therefore, one can acquire an elephant with Hagbahah by guiding
it so that it stands on top of bundles of branches such that its feet are
three Tefachim from the ground. According to RABEINU MESHULAM in TOSFOS (DH
Iy Nami), the Gemara means that a person can dangle food in front of an
elephant so that it lifts itself off the ground, and that is considered
Hagbahah.

This seems to be one of the essential differences between the Kinyan of
Hagbahah and the Kinyan of Chatzer (or Yad). The Torah teaches ("v'Nasan
b'Yadah" (Devarim 24:1; Gitin 77a)) that a person acquires whatever is
placed into his hand (Yad) or courtyard (Chatzer). Hagbahah is similar to
Meshichah; it is only a Kinyan d'Rabanan according to Rebbi Yochanan, and
according to Reish Lakish it is a Kinyan d'Oraisa (RAMBAN RITVA and RAN,
25b; see also SEFER HA'MITZVOS of the Rambam #245).

Why is it necessary to have a separate Kinyan of Hagbahah, if every time a
person grasps something and lifts it up, he acquires it through the Kinyan
of Yad? From our Gemara we see that the Kinyan of Hagbahah allows a person
to be Koneh something without even touching it, as long as he *causes* it to
be lifted, and in this manner Hagbahah works where Yad is not being used.

However, there are a number of questions on this point.

(a) Before the Gemara suggests that Hagbahah can be done to acquire an
elephant by causing it to rise, the Gemara seems to think that Hagbahah must
be done by actually lifting the item. How, then, did the Gemara understand
why it is necessary to have a separate Kinyan of Hagbahah? Every time a
person lifts something up, he should be Koneh it through Yad, and the Kinyan
of Hagbahah is not necessary!

Similarly, we find earlier (22b) that if a person lifts up an Eved Kena'ani,
he is not Koneh the Eved (according to the Tana Kama). We know that one can
acquire an Eved Kena'ani through Chatzer (since even land can be acquired
through Chatzer -- see RASHBA, Gitin 21b). Why, then, should the master not
acquire the Eved through Kinyan *Yad* when he picks up the Eved? (NESIVOS
HA'MISHPAT 196:2)

Also, TOSFOS in a number of places (see Tosfos here; Bava Kama 29b, DH Ela;
Eruvin 79b, DH Tzarich) proves that Hagbahah done by lifting the item one
Tefach suffices. He proves this from the Gemara in Eruvin (79b) which says
that lifting the barrel of wine used for Shituf Mavu'os one Tefach from the
ground is sufficient to make a Kinyan on the barrel on behalf of those
living in the Mavuy. Why, though, should it be necessary to perform Hagbahah
on the barrel altogether? The moment he grasps it and picks it up, he should
be Koneh it with "Yad!"

(b) RASHI writes in a number of places (see Rashi here, DH b'Chavilei) that
Hagbahah involves lifting an object at least three Tefachim off of the
ground. Because of this requirement, Rashi concludes in Kesuvos (31a, DH
d'Iy Ba'i Gachin) that if a person eats someone else's Chelev by picking it
up below three Tefachim and putting it in his mouth (also below three
Tefachim), he is not Koneh the Chelev with Hagbahah before he actually eats
it. Why, though, is he not Koneh the Chelev through Kinyan Yad, since he is
holding it in his hand (or mouth) even when it is below three Tefachim!
(Tosfos in Kesuvos 31a, DH d'Iy Ba'i, and 31b, DH Rav Ashi)

Although Rashi there (Kesuvos 31b, DH k'd'Rava; see MAHARSHA 31a) seems to
learn that the Amora'im argue over this point, and, according to Rava, an
object that is in a person's hands below three Tefachim *can* be acquired
through Hagbahah, nevertheless he still seems to be addressing Kinyan
Hagbahah and not Kinyan Yad. Why is the person not Koneh the Chelev through
Yad?

(c) The Gemara in Gitin (21a) teaches that a man can put a Get into the hand
of his Eved and be Makneh the Eved to his wife, and she becomes divorced
because "Gitah v'Yadah Ba'in k'Echad." The Gemara says that the Eved must be
tied up in order for the woman to become divorced, for if the Eved is not
tied up, he is not considered her Chatzer that can acquire a Get for her,
because he is a "Chatzer that walks" and is "not guarded by her." We know
that anything an Eved receives belongs to his master (23b). Why, then,
should the woman not become divorced? When the Eved lifted up the Get, he
should have been Koneh it with Hagbahah, even if he was not tied up. Since
the husband was Makneh the Eved to the woman, the Eved's Hagbahah should
acquire the Get on behalf of the woman! Why does he need to acquire it with
a Kinyan Chatzer (and if he is not tied up, the Kinyan Chatzer will not
work)? (NESIVOS HA'MISHPAT 188:1)

ANSWERS:

(a) It is clear from these questions that even when a person lifts something
with his hand, he does not always make a Kinyan Yad on it. The NESIVOS
HA'MISHPAT (198:5, 268:2) writes that only what is inside, or above, the
hand is acquired through Kinyan Yad. An item that is in the hand but that
protrudes over the sides of the hand is not acquired through Kinyan Yad, but
only through Hagbahah. He compares this to an object which is resting
partially inside a Chatzer and partially outside of it, which cannot be
acquired with Kinyan Chatzer (see Insights to Gitin 78:1). This is why
lifting up the Eved or lifting up the barrel will not be a Kinyan Yad. (See
Nesivos ha'Mishpat (196:2) who suggests another answer for why lifting the
Eved is not a Kinyan Yad.)

We may question this assumption of the Nesivos. When the Torah describes the
Kinyan of Yad in the case of a Get, it says "v'Nasan b'Yadah," implying that
any manner in which the Get is placed in her hand causes her to be divorced,
even if part of the Get protrudes from her hand. This implies that even when
part of the Get protrudes over the side of the hand, it can still be
acquired through Kinyan Yad.

In fact, even when making a Kinyan Chatzer, it would seem that if a person
owns a flat rock, anything placed on top of the rock can be acquired through
Chatzer even if it protrudes over the edge of the rock, since the item is
resting entirely on his property (i.e. on the rock). The reason why Kinyan
Chatzer does not work when the item is resting part inside and part outside
of the Chatzer is because it is being supported partially by another
person's Chatzer.

Perhaps we can suggest another reason why one cannot acquire an Eved or
barrel through Kinyan Yad by lifting it. When an object is too heavy to lift
with one hand, the only way that it stays in the person's hand is because he
is applying pressure with the other hand to keep the item from falling. In
such a case, the object cannot be said to be "resting" on the person's hand.
Rather, it is comparable to nailing an item to a wall. Even though the
object is kept in place by the nail, it cannot be called "resting" on the
nail (or on the wall for that matter) and thus the owner of the nail cannot
acquire the item through Kinyan Chatzer. The only time Yad can make a Kinyan
is when an object is *resting* on the hand (like a Get), just like an object
rests on the ground.

(b) Regarding the second question concerning Rashi's view that when the hand
is below three Tefachim it cannot be Koneh an item inside of it, the KOVETZ
SHI'URIM (Kesuvos 31b) suggests that the verse ("v'Nasan b'Yadah") might be
referring only to when the hand of the woman is above three Tefachim from
the ground. TOSFOS (Kesuvos 31a), however, appears to avoid this answer by
citing the Gemara in Gitin (78a) which says that when a basket is tied to
the woman by a string, even though the basket alone cannot acquire the Get
through Kinyan Chatzer because it is resting on the property of the husband,
nevertheless it is considered like the Get is given directly to the woman
since her basket is attached to her. We see from the Gemara there that what
is attached to the woman *can* acquire the Get for her even when it is
*below* three Tefachim from the ground. Why, then, should the hand of the
woman be any less of a Kinyan than a basket that is attached to her?

We may explain Rashi's opinion that the hand is not Koneh an item when it is
under three Tefachim as follows. The Gemara in Gitin, which discusses the
woman's basket, is discussing whether the vessels of one person can be Koneh
for him while they are resting in the domain of another person. If they can
be Koneh, then the basket does not have to be attached to the woman, and if
they cannot be Koneh, then the basket must be attached to the woman. When it
is attached to the woman, the husband does not mind that the basket is
resting on his property, and therefore the vessel of the woman in the domain
of the husband can be Koneh for her (see Insights to Gitin 78:1).

Accordingly, we can suggest that when Rashi writes in Kesuvos that the hand
cannot be Koneh an item under three Tefachim in someone else's domain, he is
not following the opinion that holds that the vessels of the buyer can be
Koneh in the domain of the seller, because that opinion would certainly say
that the hand is no worse than the vessel of the buyer and can acquire what
is inside of it, even though someone else's domain is beneath it. However,
according to the opinion that holds that the vessels of the buyer cannot be
Koneh in the domain of the seller, the hand is no different than the vessel
of the buyer, and if it is in someone else's domain it cannot be Koneh
(through Kinyan Yad), even if it is more than three Tefachim off of the
ground. Nevertheless, when a husband gives his wife a Get, she *is* Koneh
through Yad, even if she is in his domain. The reason for this is because
the husband does not mind that his wife is standing on a certain part of his
property, as is clear from the Gemara in Gitin (78a). (Even though Amora'im
there argue whether the husband is Makpid on the area between her legs when
she is sitting down, everyone agrees that he is not Makpid on the area
immediately underneath her.)

When Rashi in Kesuvos writes that the hand is not Koneh below three
Tefachim, he is not discussing a Get being given to a wife, but rather a
thief who is stealing something. The owner of the property, in such a case,
certainly minds that the thief is standing on his property! Therefore, the
thief will not be able to be Koneh with Yad unless he leaves the domain of
the owner. That is why the thief has to lift the item at least three
Tefachim high -- in order to be Koneh the item through Hagbahah.

(c) A Get delivered to the hand of the wife's Eved cannot take effect
through the principle of "everything the Eved acquires, his master acquires"
("Mah she'Kanah Eved, Kanah Rabo"). Such a type of Kinyan does not qualify
as "v'Nasan b'Yadah," placing the Get in the *hand* -- or property -- of the
wife, unless the Eved is considered a Chatzer of the wife (e.g. he is tied
up). (It also might not be valid because of "Teli Gitech m'Al Gabei Karka,"
since it is the wife's relationship to her slave that places the Get in her
possession, and not the husband's act of handing it over.)

The Nesivos (ibid.) asks, though, that if the wife has her Eved pick up the
Get for her, it should be called "Hagbahah mi'Kochah," and it should be
Koneh directly for the woman with Hagbahah -- like causing an elephant to
walk on a raised area is Koneh it with Hagbahah.

The NESIVOS HA'MISHPAT answers that a woman cannot become divorced through
Hagbahah of the Get either. Hagbahah also does not qualify as "v'Nasan
b'Yadah." Only Chatzer or Yad can acquire a Get for the wife and divorce
her. (See TOSFOS in Gitin 21b, who implies that a woman can become divorced
when she acquires the Get through Meshichah, and Acharonim there.)

26b

2) THE REQUIREMENT OF "TZEVURIM"

QUESTION: The Gemara discusses whether -- when acquiring Metaltelin (mobile
property) through a Kinyan Agav -- it is necessary for the mobile property
to be "piled" on the land through which it is being acquired, or whether the
Kinyan will take effect even if the mobile property is somewhere else.

How can the Gemara propose the possibility that the Metaltelin must be
resting on the land in order to be acquired through Kinyan Agav? If it must
be "Tzevurim," piled on the land, then the buyer will be Koneh it through
Kinyan *Chatzer* and it would not be necessary to be Koneh it with Kinyan
Agav! Agav is only necessary because the item does not have to be in the
Chatzer! (RITVA)

ANSWERS:

(a) The RITVA explains that the Chatzer with which the person makes the
Kinyan Agav is a Chatzer "she'Einah Mishtameres," it is not protected.
Therefore, it cannot acquire the Metaltelin through Kinyan Chatzer. That is
why it is necessary to be Koneh the Metaltelin through Agav, even though
they are resting on the land.

The answer of the Ritva does not seem to conform to all of the opinions
mentioned in the Gemara in Bava Metzia (11b). The Gemara there discusses
whether a Chatzer that is not protected can be Koneh objects in it through
Kinyan Chatzer. Ula and Shmuel say that such a Chatzer cannot be Koneh,
unless the owner is standing next to it (making it a Chatzer that *is*
guarded). Rebbi Aba attempts to prove that the Chatzer can be Koneh the
object even when the owner is not there. His proof is from the story of
Raban Gamliel and the Zekenim who were together on the boat (which the
Gemara here cites as well). Rebbi Aba was assuming that the Zekenim
accompanying Raban Gamliel were Koneh from him the Ma'aser and Ma'aser Ani
via his Chatzer that he leased to them, even though the Chatzer was not
guarded. The Gemara there suggests two ways to refute this proof. First, it
says that the Zekenim were Koneh with Kinyan Agav and not with Kinyan
Chatzer. Second, Rav Papa answers that a Chatzer that is not guarded *does*
work to be Koneh a *gift*, when there is someone giving the item ("Da'as
Acheres Makneh"); it cannot work to be Koneh an item from Hefker when there
is no one giving the item.

The Ritva's answer suffices according to the Gemara's first answer in Bava
Metzia that holds that even when someone is giving a gift ("Da'as Acheres
Makneh"), a Chatzer that is not guarded cannot be Koneh the gift for the
recipient, and therefore the only way the Zekenim could have been Koneh the
Ma'aser which was resting in the Chatzer was through Kinyan Agav. However,
according to Rav Papa's answer, the Zekenim were able to be Koneh what was
resting in their Chatzer with Kinyan Chatzer even though it was not a
Chatzer that was guarded!

Every case of Kinyan Agav is, by nature, a case of "Da'as Acheres Makneh,"
where there is someone giving the item, because Kinyan Agav requires that
there be a giver who tells the recipient to be Koneh through Agav (as the
Gemara says on 27a). If, however, Agav requires "Tzevurim," then the
recipient should always be Koneh with Chatzer! What would be the advantage
of Kinyan Agav altogether?

Apparently, the Ritva means to say that our Gemara does not accept the
opinion of Rav Papa who says that one can be Makneh a gift with a Chatzer
that is not guarded, and therefore the only way to acquire an item resting
in a Chatzer that is not guarded is through Kinyan Agav. That is why the
Gemara asks whether Kinyan Agav requires "Tzevurim" or not, and it does not
assume that if the Metaltelin are "Tzevurim" one will be Koneh them with
Kinyan Chatzer.

According to Rav Papa, it is obvious that a Kinyan Agav does not require the
item to be resting on the property. (Indeed, this is the Gemara's
conclusion.)

(b) The SHITAH LO NODA L'MI cites "BA'ALEI TOSFOS" who write that the reason
why Metaltelin that are piled in a Chatzer cannot be acquired through Kinyan
Chatzer is because Kinyan Chatzer can only be Koneh an object which came to
the Chatzer *after* the Chatzer became the property of the buyer (and it
cannot be Koneh what was in the Chatzer before it became this person's
property). The Shitah Lo Noda l'Mi might be referring to the TOSFOS
CHITZONIYOS cited by Shitah Mekubetzes in Bava Metzia (end of 25b, and
quoted in the KETZOS HA'CHOSHEN 198:2, and the MACHANEH EFRAIM, Hilchos
Kinyan Chatzer #13) who also gives this answer. The HAGAHOS ASHIRI there
also writes this distinction.

The Ketzos ha'Choshen and Machaneh Efraim question this distinction based on
the Gemara in Bava Metzia where Rav Papa says clearly that the Zekenim were
Koneh from Raban Gamliel with Kinyan Chatzer, even though Raban Gamliel gave
them the Chatzer beneath the Ma'aser *after* the Ma'aser was already resting
there.

The answer is that, apparently, the Tosfos Chitzoniyos is also assuming that
our Gemara's question does not conform with the opinion of Rav Papa, but
rather it conforms with the other answer of the Gemara in Bava Metzia which
says that the Zekenim were Koneh with Kinyan Agav. He is suggesting that
according to those who say that the Zekenim were Koneh with Agav, not only
do they argue with Rav Papa and say that a Chatzer that is not guarded
cannot be Koneh, but they also disagree with him and hold that anything
which enters the Chatzer before the owner buys it cannot be acquired with
Kinyan Chatzer for the new owner. That is why the objects which are piled
there, "Tzevurim," can be acquired only with Kinyan Agav and not with Kinyan
Chatzer (according to the side of the question that holds that "Tzevurim" is
necessary).

The Acharonim question the Tosfos Chitzoniyos from another Gemara. The
Gemara in Gitin (21a) teaches that a man can place a Get in the hands of his
servant and then be Makneh the servant to his wife, and she becomes divorced
through "Gitah v'Yadah Ba'in k'Echad." This Gemara clearly shows that the
woman can acquire the Get even though it was in the Eved's hand before the
Eved became hers. Apparently, Tosfos Chitzoniyos will explain that the
Gemara there follows the opinion of Rav Papa and the opinion of our Gemara
in its conclusion (that Agav does not require "Tzevurim"), and an object
that is "Tzevurim" and resting in the Chatzer (or in the hands of the Eved)
*can* be acquired through Chatzer and does not need a Kinyan of Agav.

(c) Even if Kinyan Agav works only when the Metaltelin are "Tzevurim," there
is another difference between Kinyan Agav and Kinyan Chatzer. The RITVA and
TOSFOS RID here (27a) write that when an object is transferred with Kinyan
Agav, the land and what is in it are transferred simultaneously. However,
when the recipient is Koneh the Metaltelin with Kinyan Chatzer, he must
first acquire the Chatzer, and only afterwards is he Koneh the Metaltelin.
(See CHASAM SOFER OC 117, DH Mah she'Kasuv Ma'alaso; see Insights to Gitin
77b.)

Accordingly, a practical difference between Kinyan Agav and Kinyan Chatzer
would be as follows. Reuven sells Metaltelin to Shimon on the condition that
Shimon should acquire it only at the moment that Levi makes a Kinyan on the
land (that Reuven is selling to Levi) that is underneath the Metaltelin.
Reuven then tells Levi that he wants Levi to make a Kinyan on the land and
to acquire the Metaltelin that are on it (that is, the Metaltelin which he
already sold to Shimon). If Levi is Koneh the Metaltelin with Kinyan
Chatzer, then the Kinyan of Shimon will have preceded Levi's Kinyan, since
Levi's Kinyan on the Metaltelin took effect at the same moment that Levi
acquired the land, and Levi cannot acquire the Metaltelin with his Chatzer
until the *next* moment. However, if Levi is Koneh the Metaltelin with Agav,
then his Kinyan takes place at exactly the same time as Shimon's Kinyan and
thus they would split the Metaltelin. Although this is a practical
difference, it is obvious that this is not the reason why the Torah gives
the Kinyan of Agav. Therefore, to answer our original question, why is
Kinyan Agav necessary if Agav must be "Tzevurim" and thus Kinyan Chatzer
should work, we must resort to one of the first two answers above.